Relatively speaking: Will becomes public record after it's probated

Nov. 25, 2010 at 5:25 a.m.

By Martha Jones

". . .being of sound mind I leave this my last will and testament.." A "will" is a document in which the testator, the person making the will, distributes his or her real estate. Real estate includes land with or without buildings. It also means real property. To distribute real property by will, the testator (male) or testatrix (female) must be 21 or older. A testament is a document in which the testator distributes his or her personal property.

Generally, wills become public record after they are probated through the legal process of settling an estate.

"Are all wills public record?" Elizabeth Lindsay in Genealogy Today offers an answer. Usually, after a will is probated, it becomes a public record. In some cases, there are ways to circumvent the public record aspect of an estate settlement. Although different countries may have different laws regarding wills, U.S. wills are public record once they have been filed with the court. People can make a will and keep it private until they die and the will is submitted for probate. The probate court determines the validity of the will and settles the estate, after which the will enters public record. Certain privacy laws within a given state, province or country may restrict access to wills within a particular time period, just as they do for certain vital records. It is possible, however, for someone to die and pass along his or her inheritance through a living trust. Unlike a will, it is not probated and never becomes public record.

USING PROBATE, LAND RECORDS TO DETERMINE PARENT/CHILD RELATIONSHIPS Historically, estates were divided between the wife and children of a deceased male if he did not leave a will (intestate). A parent may will land or other property to a child while not mentioning the relationship. The willing of land to a proposed child may seal the relationship without being directly stated. In other cases, the court may distribute an equal share of the parent's property to a child when the parent died intestate.

Land records can also hold clues to familial relationships. The first instance of land records plotting out parent/child relationships is rather common - a parent gives land to a child by "deed of gift" for little or no payment; or for "love and affection;" for promise to care for in old age; or other reasons such as "valuable considerations."

A second clue may be that a child pays property taxes on land or chattels (goods) purchased by the parent that were not sold or exchanged during the parent's lifetime. A third example strengthening a parent/child relationship with land records appears when the child sells the same piece of property the parents owned during their lifetime - especially the land the parent lived on.

While a single record stating the relationship is a treasure to find, at times genealogists must use some of the techniques listed above to feel confident about questionable parent and child relationships.

Happy researching.

E-mail genealogy queries to mjones@vicad.com. VCGS members will research queries requiring extensive study.